• posted: Feb. 19, 2016
• Hemmer DeFrank Wessels PLLC
• Uncategorized

Written By: Scott R. Thomas

If you want to own a suppressor (a silencer) or any firearm regulated by the National Firearms Act of 1934 (“NFA”), you have to submit an application to the Bureau of Alcohol, Tobacco, Firearms, and Explosives.   These items are serialized and the Bureau keeps track of who owns what.  You submit your application on BATFE Form 4, along with your check for $200 to pay for the tax stamp.  The application requires a fingerprint sample, a passport-style photograph, and the approval of the chief law enforcement officer in your community.   Of course, the possession of the item has to be permissible under state law.  Possession of suppressors is legal in Ohio, Kentucky and Indiana.

Huntertown Arms “Guardian” on an HK P9s.

For people in many communities, however, getting the approval of local law enforcement was a problem.  While suppressors have many advantages in terms of hearing protection, reduced recoil, and diminished disturbance of game, many law enforcement officials saw suppressors as the tools of assassins in Hollywood movies and refused to sign applications submitted for their approval.  Enter the “gun trust.”

A trust is a relationship where one person—the Trustee—holds property for the benefit of another person—the Beneficiary.  The person who creates the trust is usually called the Grantor.  Trusts have been around for centuries.  People use them for a wide variety of purposes, to provide for children or people with special needs, for charitable reasons, to facilitate the transfer of assets at death, etc.  A trust can also be created to take ownership of NFA items and firearms—the “gun trust.”

In a gun trust, the Grantor creates the trust and transfers the NFA items to it.  The gun trust becomes the legal owner of the NFA item.  The document that creates the trust will name the Trustee and the Beneficiaries.  The Trustee and Beneficiaries are lawfully permitted to possess and use the items owned by the trust.

The gun trust was useful in the past primarily because the approval of the chief law enforcement officer was not required.  But even if your local Sheriff or Chief of Police is willing to approve a Form 4 submitted by a law-abiding citizen, the gun trust still offers several advantages compared to the purchase of an NFA item.

On an administrative level, the gun trust dispenses with some of the red tape associated with an individual application.  With a trust, for example, no photographs and fingerprints need be submitted.  More importantly, the gun trust protects your family in the event of your untimely death.  For example, if a person who lawfully purchased a suppressor later dies, the spouse or roommate could be deemed to have “constructive possession” of the suppressor in the house because they have “dominion and control” over it.  The BATFE calls such people “accidental felons.”  Possession of a suppressor without a tax stamp is a felony punishable by up to ten years imprisonment.

A gun trust enables you to avoid that risk.  Gun trusts should be created with multiple beneficiaries so that the “survivor” who “constructively possesses” the NFA item will be possessing it legally.  The Beneficiary can then decide whether to dispose of the item legally by transfer or otherwise.  In the alternative, the gun trust can be amended to adapt to the change in circumstances.

All that said, the rules are changing.  Last month, President Obama announced his plan to implement gun control measures using his executive powers.  One of those measures was the promulgation of “Rule 41F” by the BATFE.  This Rule becomes effective on July 13, 2016.  Without attempting to recite the 248 pages that appeared in the Federal Register, suffice it to say that Rule 41F makes some significant procedural changes.

Rule 41F creates obligations for “Responsible Persons” under the trust.  A Responsible Person is broadly defined to include any person who has a right to possess the NFA item.  Since possession is the whole purpose of the gun trust, the Grantor, the Trustee and all the Beneficiaries will likely be deemed “Responsible Persons” under the Rule.  After July 13, 2016, when a gun trust acquires an NFA item, each Responsible Person in the trust will be required to do the kinds of things that individuals must now do: submit fingerprint cards, photographs, etc.  While the approval of the chief law enforcement officer will no longer be required, the Responsible Person must still give that officer a copy of the application.

The good news is that Rule 41F is not retroactive.  Any application that is approved—or pending at BATFE—before July 13, 2016, will be grandfathered in under the former rules.  Accordingly, if getting a suppressor or NFA item (pre-1986 automatic weapon, short-barreled rifle, etc.) is on your bucket list, now is the ideal time to get a gun trust and put that plan in motion.

There are gun trusts that are offered for sale on the internet.  Be wary.  There’s a reason they publish a small-print disclaimer along the lines of “GunTrustsЯUs does not offer legal advice, recommends you consult an attorney, and will not be responsible for the use of this form by any person.”  For example, most of these online purveyors will claim “Valid in All 50 States.”  Really?  Good luck trying to use your gun trust in the 11 states that prohibit private possession of a suppressor.  If there’s a state law that’s the same in all 50 states, I don’t know what it is; but I’m willing to bet it has nothing to do with gun trusts.

So recognize that the gun trust is an important legal document that will protect you, your family, and your significant investment in NFA items.  This is not the place to cut corners with a generic, one-size-fits-all document prepared by someone you’ll never talk to.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

• posted: Feb. 29, 2016
• Hemmer DeFrank Wessels PLLC
• Uncategorized

Written By: Todd V. McMurtry

Most lawsuits today are settled through mediation.  For this reason, a lawyer’s skill at managing the mediation process is more critical than ever.  So, a lawyer has to be prepared for the unexpected.  Take for example, a client that has become incapacitated.  Time and circumstance may cause a client who started the case in full possession of her mental faculties, to later suffer diminished capacity to the point of incapacity.  This change imposes additional duties on the lawyer

Common examples of diminished capacity are (1) a spouse suffering debilitating depression as the result of a divorce proceeding, and (2) an elderly client who shows signs of dementia or foggy thinking.  The National Institute of Mental Health defines Major depression as “severe symptoms that interfere with your ability to work, sleep, study, eat, and enjoy life.”  These symptoms would certainly describe a client with diminished capacity.  Similarly, an elderly client may show signs of dementia or clouded thinking caused by Alzheimer’s, a recent surgery or new medication.  Any of these conditions could limit a client’s ability to engage in the mediation process. 

The ABA Model Rules of Professional Conduct, Rule § 1.14 governs this situation.  Subsection (a) states, “When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”  This rule favors that the lawyer do all she can to work with a client under these adverse circumstances, but it also provides further guidance if the lawyer believes this effort has become untenable.

Subsection (b) states, “When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”  By this rule, the “risk of substantial . . . harm” is the trigger for the lawyer to act. 

Either of these scenarios could befall an attorney without notice at mediation.  If faced by a scenario where counsel believes her client may be at risk of substantial harm, such as entering into a damaging mediation agreement, due to incapacity, and where counsel cannot adequately act in the client’s best interest, the best decision is to adjourn the mediation and immediately consult with individuals that have the ability to protect your client from substantial harm.  

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

• posted: Feb. 09, 2016
• Hemmer DeFrank Wessels PLLC
• Uncategorized

Written By: Scott R. Thomas

Do you get bombarded with questions from employees about the same topics, over and over again?  Are you plagued with situations where information given by one supervisor conflicts with that given by another supervisor?  Are you summoned to referee disputes between employees who claim that someone is being treated differently? If so, peace awaits.  The answer is your Employee Handbook.

Many employers resist the idea of creating an Employee Handbook.  To be sure, putting it together is a lot of work.  But that work pays dividends, year in and year out.  And it can even act like an insurance policy!  First, let’s consider the advantages.

One function of the Employee Handbook is to serve as a repository for all the answers to the questions employees like to ask.  “Do we get Arbor Day off?”  “Can I take off a quarter of a sick day to go to a doctor’s appointment?”  “Why does Jeff get ten days’ vacation and I get only five?”  The Employee Handbook can be your storehouse of all the information employees need to understand the benefits they have.  Employees want to know about holidays, sick days, vacation days, outside employment, jury duty, funeral leave, breaks, meal breaks, inclement weather, paydays, and everything else you can imagine.  Put it all in one place and your knee-jerk response can be: “What’s the Employee Handbook say?”  The amount of questions you have to answer on the fly will plummet.

The Employee Handbook is a living document.  Have you ever gotten a question from an employee premised on some past action the company took, e.g., “Are we going to be let off early for Halloween like we were last year?”   Properly maintained, the Employee Handbook can grow with you and your company.  Many employers keep a log of issues that come up that were not addressed in the Employee Handbook.  The company then studies these items and decides whether the issue is likely to crop up again down the road.  If the question is likely to resurface, or there’s a benefit to memorializing the decision, it makes sense to amend the Employee Handbook to include the new policy.

All that said, the Employee Handbook is not an Employee Bill of Rights.  Of course, the Employee Handbook tells the employees things they want to know.  But it also tells them the things you want them to know: telephone courtesy, the difference between full time and part time, cell phone usage, personal appearance, etc.  If it’s important to you, put it in there.

“Must,” not “may.”  Your Employee Handbook is not the place for wiggle room.  If you want an employee to do something, phrase that task as an obligation.  Some handbooks express the employer’s desire with a gentle “should,” as in “The employee ‘should’ call the supervisor as soon as he knows he will be absent or late.”  If you want the employee to do it, phrase the obligations not as a “should do” but a “must do.”  If it’s important enough to you that you want it in the manual, make it mandatory.  If the employee falls short of the requirement, you can always decide whether—as a matter of your discretion—you want to let the employee slide.  But keep all the discretion on your side of the table, not the employees’.

“May, not “will.”  When it comes to your obligations, on the other hand, give yourself some latitude.  You don’t want to set your own obligations in concrete.  For example, there is no law that requires you to set out in an Employee Handbook such as “Every November 1, the Company will provide each employee with a written performance evaluation on which any compensation adjustments will be made.”  Say you put that burden on yourself and then an unforeseen circumstance makes it impossible to make the requirement.  A few weeks later, you get a complaint from a disgruntled employee: “The Company was supposed to give me a written performance evaluation but failed to do so; if the Company evaluated my performance, I would have gotten a raise.”  You don’t need that aggravation.  Better to say: “From time to time, the Company will evaluate your performance to give you feedback on how you’re doing” and “From time to time, the Company will adjust an employee’s compensation based on the employee’s performance, attendance, attitude, and the needs of the Company.”

Perhaps the best benefit of creating an Employee Handbook is its service as insurance policy of sorts.  A comprehensive Employee Handbook will include a section on the Company’s policy of no toleration on sexual harassment.  That section will explain what an employee needs to do if she feels she may be the victim of sexual harassment.  You tell the employee to whom a report may be made, without fear of retaliation, and with the assurance that the Company will conduct a thorough investigation and take appropriate action.  If a sexual harassment situation later becomes a full-blown lawsuit, merely having this section in your Employee Handbook will help the company establish an affirmative defense to liability.  Given that many actual insurance policies exclude coverage for sexual harassment claims, this may be the best protection available.  And the best part: you don’t have to pay any premiums.

So if you have an Employee Handbook, dust it off and make sure it says all the things you want it to say, the way you want them said.  If you don’t have one, start typing!

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.